Free Speech Under Assault at Sinclair Community College

May 10, 2011

Yet another assault on First Amendment rights on college campuses is taking place in Dayton, Ohio. Last October, Sinclair Community College (SCC) prohibited a paralegal studies student, Ethel Borel-Donohue, from distributing pamphlets to her fellow students after a class. The pamphlets focused on the link between abortion and the use of oral contraceptives to higher rates of breast cancer. October is Breast Cancer Awareness Month, but Judge Michael Brigner, Paralegal Program Chair, banned the distribution after receiving a complaint from a student who had had an abortion, telling Borel-Donohue she “had no right to hand out any materials to students in the classroom.” Borel-Donohue, contacted the Foundation for Individual Rights in Education (FIRE) for help, claiming she was worried about repercussions from the incident. FIRE has taken up her cause.

Last Friday I spoke with Madeline Iseli, newly-appointed Vice President of the Sinclair College Advancement Division, who explained to me that SCC has restrictions contained in the Sinclair Community College Campus Access Policy which allows the “Board of Trustees of Sinclair Community College to regulate access to such property in such a manner that the purposes of the Community College are adequately served.”

Sounds reasonable enough. Yet in “Section IV, SOLICITATIONS AND LITERATURE DISTRIBUTION:” paragraph 3, the restrictions become problematic: “Literature may not be distributed in working areas, including: classrooms, laboratories, lecture halls, gymnasiums, libraries, offices, work stations, conference rooms, and corridors leading directly thereto which are an integral part of the work areas.” Ms. Borel-Donohue reveals the Constitutional dubiousness of such restrictions. ”So you can distribute literature, but you just can’t do it anywhere. I’ve been to several universities, but Sinclair, it seems, is really totalitarian in their control,” she said.

Enter FIRE. In February, the organization sent a letter to Sinclair President Steven Lee Johnson, noting that campus policies restricting distribution of literature outside of class time are unlawful. FIRE cited a 1979 federal district court decision, Solid Rock Foundation v. Ohio State University to back up its contention. In that case, the court ruled that Ohio State’s attempt to “regulate the distribution of plaintiffs’ publication so that the campus will be ‘aesthetically pleasurable,’” was “likely not to pass constitutional muster” and that distribution of [of literature] is not the kind of activity which “materially disrupts classwork or involves a substantial disorder or invasion of the rights of others.” Furthermore, in addressing the issue of complaints as a basis for restricting the distribution of literature, the court noted that ”[T]here may be complaints from those in the campus community who desire not to be subjected to plaintiffs’ views, such as appear to have prompted the University action in the first place. But the University may not, in the interest of protecting particular persons from an unpopular viewpoint, substitute its judgment for the judgment of the individual, who has a right to determine whether or not he is willing to receive plaintiffs’ message.”

FIRE president Greg Lukianoff whittled the ruling down to plain language. ”If someone’s claim to be offended by speech were all it took to overrule the First Amendment, we would all be reduced to silence… the Constitution does not recognize a ‘right not to be offended,’” he said.

Yet Sinclair College attorney, General Counsel Lauren M. Ross, who is also the state of Ohio’s assistant attorney general, insists such restrictions do not violate the First Amendment. ”Sinclair embraces the principles of the First Amendment to the U.S. Constitution and the right of free speech …Citizens are free to peacefully share their thoughts and distribute literature on campus in common areas such as atriums, eating areas, and much of the Physical Activities Center and the outdoor plazas,” she said. She also sent a letter to FIRE vice president Adam Kissel citing both the aforementioned College Campus Access Policy and the Student Judicial Affairs Code of Conduct as reasons for restricting Borel-Donohue.

That explanation didn’t fly with Kissel, who sent a second letter on March 23rd, copying Ohio Governor John R. Kasich and Ohio Attorney General Mike DeWine, stating that “free speech remains chilled at SCC so long as the Student Code of Conduct impermissibly bans “distribution … of materials on Sinclair owned or controlled property.” The letter called for Sinclair to bring the college’s policies into compliance with the First Amendment. The college didn’t respond. On May 2nd, a third letter addressed to Lawrence Porter, Chair Board of Trustees, Sinclair Community College, was sent. In it Mr. Kissel noted that “SCC maintains two conflicting policies regarding distribution of literature, both of which are unconstitutional.” The letter notes that while “it might be constitutional to ban distribution of materials by students in a classroom during class time, it is not constitutionally permissible to ban such distribution after class. Indeed, such locations are exactly where the marketplace of ideas should be at its most robust.”

Back to Ms. Iseli. When I pressed her on whether or not Borel-Donohue could distribute literature once class had ended, she told me the college had “asked” Ms. Borel-Donahue to refrain from doing so. When I asked what would happen if Borel-Donohue decided to ignore the “request,” Ms. Iseli, who explained that she “was not an attorney,” speculated that the Code of Conduct might be used to discipline Borel-Donohue.

The Code of Conduct contains three levels of “Prohibited Behavior.” They escalate from “First Time Misconduct or Minor Violations,” to “Repeat Misconduct or More Serious Misconduct,” to “Major Misconduct.” Ms. Borel-Donohue has ostensibly committed a level one violation, which prohibits “Solicitation, distribution, selling or promotion of materials on Sinclair owned or controlled property.” Presumably, Ms. Borel-Donohue, who has said she is considering defying the ban, could be charged with a level two violation were she to make good on her intentions.

Yet Adam Kissel, with whom I also spoke with on Friday, is confident that FIRE and Ms. Borel-Donohue will ultimately prevail. He noted FIRE”s “perfect” track record with respect to court decisions regarding students’ First Amendment rights versus campus speech codes, and he noted that part of the Higher Education Act re-authorized by president George W. Bush in 2008–with bipartisan support–contained a sense of Congress resolution stating that ”an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.” With respect to due process, Congress noted that college “students should be treated equally and fairly” adding that any student sanctions should be imposed “objectively and fairly.”

In an interview last February, after a speech at the meeting of the Conservative Political Action Committee (CPAC), Kissel explained that “two thirds of public universities have un-Constitutional speech codes, blatantly un-Constitutional,” adding that college campuses “have all these offices for diversity that are telling students, ‘no, not only shouldn’t you say the things that offend people, but you can’t, and we’ll punish you if you do.’” He also noted that “if the average citizen knew what was going on on campus, they would be outraged.”

Here’s hoping Mr. Kissel is correct. For far too long, far too many universities have elevated the inappropriately coined “right to not be offended” over the Constitutionally-protected right to speak one’s mind absent fear of retribution. In an Orwellian sense, Mr. Kissel noted that “intellectual diversity,” which is invariably cited by college officials as the reason for speech codes, “is last on the list, if it shows up at all” on college campuses. Apparently Sinclair Community College is no exception–at least for now. As Kissel remarked to me, “sunlight is the best disinfectant.” The sun is now shining on SCC.

Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.